ZAFIROV

v.

FLORIDA MEDICAL ASSOCIATES, LLC

26(b)(3)(A); see also Drummond Co. v. Conrad & Scherer, LLP, 885 F. 3d 1324, 1334–35 (11th Cir. 2018) (“Attorney work product protection extends to material obtained or prepared by counsel in the course of their legal duties provided that the work was done with an eye toward litigation."). As Relator states in her response, although she initiated this action in May 2019, the action remained under seal until June 2020. Dr. Mansour initiated his qui tam action in December 2019, and that action remained under seal until September 2020. The parties then executed this Relator Sharing Agreement in December 2020, with one attorney signing in January 2021. The Court also finds that the common interest doctrine applies to the agreement. See, e.g., Lane Constr. Corp. v. Skanska USA Civil Se., Inc., No. 6:21-cv-164-RBD-DCI, 2022 WL 18773723, at *1 (M.D. Fla. Nov. 7, 2022) (“Under the 'common interest' exception to waiver, a party may share its work product with another party without waiving the right to assert the privilege when the parties have a shared interest in actual or potential litigation against a common adversary, and the nature of their common interest is legal, and not solely commercial.") (quoting Spencer v. Taco Bell Corp., No. 8:12-cv-387-T-23TBM, 2013 WL 12156093, at *3 (M.D. Fla. Apr. 23, 2013)). The party asserting that a document falls within the common interest doctrine must show “(1) there was a common legal interest among them, (2) the parties are represented by separate lawyers and, (3) the parties (with their lawyers) agreed to exchange information concerning the matter of common interest.” Lane Constr. Corp., 2022 WL 18773723, at *1 (quoting United States v. Patel, 509 F. Supp. 3d 1334, 1340 (S.D. Fla. 2020)). Here, Relator has established each of these elements, as (1) Relator and Dr. Mansour shared a common legal interest in prosecuting Defendants for submitting 5

allegedly false claims on behalf of the United States; [fn 2] (2) Relator and Dr. Mansour were represented by separate counsel when they negotiated and executed the Relator Sharing Agreement; and (3) the Relator Sharing Agreement reflects Relator and Dr. Mansour's agreement to exchange information concerning this litigation. The protection afforded to work product, however, is not absolute. Indeed, "[d]iscovery may be had into factual work product upon a party showing 'substantial need for the materials to prepare its case' and that it 'cannot, without undue hardship, obtain their substantial equivalent by other means.” Drummond, 885 F. 3d at 1335 (quoting Fed. R. Civ. P. 26(b)(3)(A)). “Greater protection is given to the attorney's opinion work product—that is, materials containing 'the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.” Drummond, 885 F. 3d at 1335 (quoting Fed. R. Civ. P. 26(b)(3)(B)). “[O]pinion work product enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances." Cox v. Admin. U.S. Steel & Carnegie, 17 F. 3d 1386, 1422 (11th Cir. 1994) (quotations omitted). The Court finds that the Freedom Defendants have established a substantial need for the Relator Sharing Agreement, and there is no substantial equivalent or alternative document [fn 2]: The Court is not persuaded that the mere possibility of Relator and Dr. Mansour having a degree of competing pecuniary interests alters this analysis. Cf. Fojtasek v. NCL (Bahamas) Ltd., 262 F.R.D. 650, 656 (S.D. Fla. 2009) (incident report prepared by a third party in anticipation of litigation was protected by the common interest privilege, and “the fact that [the third party] was not ultimately named in this suit, and the fact that [the defendant] has asserted that [the third party] bears full responsibility, does not change their common interest at the time the report was shared with [the defendant]”); Patel, 509 F. Supp. 3d at 1341 (stating that parties' legal interest must be “substantially similar"). [fn 3]: Dr. Mansour's counsel entered into a retainer agreement with Dr. Zafirov contemporaneous to the execution of the Relator Sharing Agreement. Relator's other attorneys do not represent Dr. Mansour (Doc. 293). 6

for Defendants to obtain by other means. As such, Defendants could not obtain the "substantial equivalent” without undue hardship. As addressed in Defendants' motion and at the hearing, the Relator Sharing Agreement reflects a financial agreement between Relator and the primary supporting non-party fact witness in this case. In order to properly assess Relator's credibility and to defend against Dr. Mansour's testimony, Defendants are entitled to review this document. While the majority of the Relator Sharing Agreement is appropriately characterized as fact work product, the agreement also contains information that is properly characterized as opinion work product insofar as it reflects the parties' reasons for entering into the Agreement, "and therefore necessarily reflect[s] the mental impressions and opinions of the parties' counsel.” In re Takata, 2017 WL 10351709, at *6. As a result, these portions of the Relator Sharing Agreement may be redacted. Cf. Jeld-Wen, 2008 WL 756455, at *5–12 (recognizing that where settlement and joint defense provisions of an agreement can be segregated, courts should order the production of the settlement paragraphs but protect the joint-defense provisions from disclosure). To that end, Relator shall produce the Relator Sharing Agreement, but may redact the following provisions: (1) the third sentence in Recital A; (2) the first sentence of Recital D; (3) Term and Condition 1; (4) the 13th through 18th words of the first sentence in Term and Condition 4, as well as the 9th through 21st words of the second sentence in Term and Condition 4; and (5) Term and Condition 5. Accordingly, it is hereby ORDERED: (1) Defendants Freedom Health, Inc. and Optimum Healthcare, Inc.'s Motion to Compel Production of Documents in Response to Requests for Production No. 11 (Doc. 280) is GRANTED IN PART AND DENIED IN PART as stated above. 7

(2) Relator shall produce a redacted copy of the Relator Sharing Agreement to Defendants on or before July 3, 2024. ORDERED in Tampa, Florida, June 27, 2024.

SEAN P. FLYNN

UNITED STATES MAGISTRATE JUDGE

8